NYLS Journal of International and Comparative Law

Volume 13 Number 1 Article 5

1992

CZECHOSLOVAKIA'S MOVEMENT TOWARD A NEW CONSTITUTION: THE CHALLENGE OF ESTABLISHING A DEMOCRATIC, MULTINATIONAL STATE

Roberta Barbieri

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Recommended Citation Barbieri, Roberta (1992) "'S MOVEMENT TOWARD A NEW CONSTITUTION: THE CHALLENGE OF ESTABLISHING A DEMOCRATIC, MULTINATIONAL STATE," NYLS Journal of International and Comparative Law: Vol. 13 : No. 1 , Article 5. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol13/iss1/ 5

This Notes and Comments is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. CZECHOSLOVAKIA'S MOVEMENT TOWARD A NEW CONSTrUTION: THE CHALLENGE OF ESTABLISHING A DEMOCRATIC, MULTINATIONAL STATE

I. INTRODUCTION

In June 1990, the people of Czechoslovakia, after experiencing over forty years of Communist dictatorship,I elected a democratic government. 2 The new government was charged with the task of formulating a new Constitution within two years. 3 This goal proved to be unattainable. As a result, in June 1992, following a subsequent round of elections, the division of Czechoslovakia into two separate countries appeared inevitable.4 This note will focus on Czechoslovakia's struggle to meet the challenge of creating a constitutional system capable of preserving its national structure and providing sufficient autonomy to the Slovak population. The dissolution of Czechoslovakia is in no small part due to the fact that the considerable cultural and economic differences between and that have existed during the period immediately following the First World War,5 when the country formulated its last democratic constitution, 6 have not diminished.7 This outcome is nonetheless regrettable for there were significant factors that distinguished the present political reality from the past, such as the 1969 transformation of the Czechoslovak constitutional system from a unitary to a federal government.' Also, Vaclav Havel, the president of Czechoslovakia until

1. The Velvet Hangover, HARPER'S, Oct. 1990, at 18 (Speech given in July 1990 by Vaclav Havel at the opening of the Salzburg Festival in Australia). 2. Id.; see also Robin Knight et al., 'sDay-Glo Revival, U.S. NEWS & WORLD REPORT, June 11, 1990, at 45. 3. LIDOVA DEMOKRACii, Aug. 18, 1990, translated and reprinted in Pithart on Tripartite Government Meeting, FBIS-EEU-90-164, Aug. 23, 1990, at 11. 4. Czechs and Slovaks Say They Plan Split, N.Y. TIMES, June 20, 1992, §1, at 3 [hereinafter Split]. 5. Joseph S. Roucek, Czechoslovakia's Minorities, in CZECHOSLOVAKIA 184 (Robert J. Kerner ed. 1949). 6. DOROTHEAEL MALLAKH, THE SLOVAK AUTONOMY MOVEMENT, 1935-1939: A STUDY IN UNRELENTING NATIONALISM 35 (1979). 7. Knight, supra note 2, at 45; William E. Schmidt, Czechs Right, Slovaks Left, N.Y. TIMES, June 8, 1992, at A7. 8. CAROL. S. LEFF, NATIONAL CoNFLIcr IN CZECHOSLOVAKIA: THE MAKING AND REMAKING N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13

July 1992, understood the need of the Slovak people to preserve their separate identity. 9 While the strictly centralist constitution of 192010 embittered the Slovaks"1 and divided the nation, 2 the new constitution promised to provide greater political self-expression to the Slovak people. This was illustrated by the power-sharing bill that was passed by the Federal Assembly in December 1990. It gave more authority to the Slovak republic after its premier threatened to leave the federation.13 However, ultimately, the modern Czechoslovak republic, like interwar Czechoslovakia, was a victim of the dominant trends of its time. The Czechoslovak Constitution of 1920 was a product of the nineteenth century idea of a strong, centralist, uninational state.14 Similarly, the failure of the democratic government of Czechoslovakia to develop a constitution must be viewed within the larger European context. At the present time, a parochial nationalism is undermining the concept of a united federal western Europe, as well as causing turmoil and bloodshed in Eastern Europe and the former Soviet Union.15 This scenario discouraged the development of a Czechoslovak constitution that established a federal, multinational state and at the same time preserved the larger structure of the nation.

IU. HISTORICAL BACKGROUND

The Czechs and Slovaks are the descendants of Slavic tribes16 that were united under the rule of the Moravian Empire in the ninth century A.D. 17 At that time there were no significant national distinctions between

OF A STATE, 1918-1987, at 121 (1988); EUGEN STEINER, THE SLOVAK DILEMMA 197 (1973). 9. Vaclav Havel's New Year's Address, 34 ORBIs: J. WORLD AFF. 253, 259 (1990). 10. EL MALIAMH, supra note 6, at 35. 11. LEFF, supra note 8, at 63; JOSEPH KORBEL, TWENTIETH CENTURY CZECHOSLOVAKIA: THE MEANINGS OF ITS HISTORY 101 (1977). 12. JozEF LErrRIcH, HISTORY OF MODERN 58 (1955); LEFF, supra note 8, at 63. 13. John Tagliabue, Conflicts Defused in Czechoslovakia, N.Y. TIMES, Dec. 13, 1990, at All. 14. See HANUS J. HAJEK, T.G. MASARYK REVISrrED: A CRITICAL ASSESSMENT 158-59 (1983); E. GARRISON WALTERS, THE OTHER EUROPE: EASTERN EUROPE TO 1945, at 151 (1988). 15. Conor C. O'Brien, Pursuing a Chimera-Nationalismat Odds with the Idea of a Federal Europe, THE TIMES LITERARY SUPPLEMENT (London), Mar. 13, 1992, at 3-4; Jacques Attali, Europe's Descent into Tribalism, NEW PERSP. Q., Fall 1992, at 38. 16. See s. HARRISON THOMSON, CZECHOSLOVAKIA IN EUROPEAN HISTORY 7-9 (1965); see also ALEXANDER KUNOSI, THE BASIS OF CZECHOSLOVAK UNITY 13 (194). 17. THOMSON, supra note 16, at 10-11; KUNOSI, supra note 16, at 13. 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION

Czechs and Slovaks. 8 Then, in the early part of the eleventh century, the Magyar tribes invaded the southeastern part of the empire.19 The people in the eastern and western areas of the former Moravian Empire were to remain separated for almost one-thousand years.2" As a result of this separation, the peoples in the two regions developed cultures that were markedly different." The western, or Czech, area was heavily influenced by German and Western culture.22 The Czechs became cosmopolitan23 and their land was eventually thoroughly industrialized.' During the early fifteenth century, the Czechs became staunch adherents of the ideas of John Hus, the Czech religious reformer 26 who was burned at the stake by the Catholic Church.27 While the Hapsburgs technically re-Catholicized the Czechs 28 after subjugating them in the early seventeenth century, 29 the Czechs were Catholic only in a nominal sense.3" They identified Catholicism with the Hapsburgs, who had taken their independence from them.3' The figure of Hus remained very much alive in the national consciousness of the Czech people. 2 During the nineteenth century, the Czechs' movement towards

18. THOMSON, supra note 16, at 11. 19. Id. at 11-12. 20. THOMSON, supra note 16, at 12-13; KUNOSI, supra note 16, at 15; Roucek, supra note 5, at 184-85. 21. See Roucek, supra note 5, at 184-85. 22. See WALTERS, supra note 14, at 124; see THOMSON, supranote 16, at 14-15; see Roucek, supra note 5, at 185. 23. See Roucek, supra note 5, at 185. 24. Id.; WALTERS, supra note 14, at 36; LEFF, supra note 8, at 12; ZBYNEK ZEMAN, THE MASARYKS: THE MAKING OF CZECHOSLOVAKIA 128 (1976). 25. THOMSON, supra note 16, at 84-86; WALTERS, supra note 14, at 30; EL MALLAKH, supra note 6, at 14. 26. THOMSON, supra note 16, at 77-80; WALTERS, supranote 14, at 30; EL MALLAKH, supra note 6, at 14. 27. THOMSON, supra note 16, at 84. 28. CECIL J. C. STREET, PRESIDENT MASARYK 50-52 (1930). 29. See THOMSON, supra note 16, at 111-13; EL MALLAKH, supranote 6, at 14; WALTERS, supra note 14, at 30. 30. Roucek, supra note 5, at 185. 31. See id.; see also EL MALLAKH, supra note 6, at 14. 32. See TOMAS G. MASARYK, THE MEANING OF CZECH HISTORY 10 (1974); RuDoLF SCHLESINGER, FEDERALISM IN CENTRAL AND EASTERN EUROPE 299 (1945); JOHN F. N. BRADLEY, IN TiE NINETEENTH CENTURY 92 (1984); LEFF, supra note 8, at 20; EL MALI.AKH, supra note 6, at 14. N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 nationalism was gaining strength.33 Czech patriots, including Thomas Masaryk, later to become the first president of Czechoslovakia,34 looked towards Hus and his beliefs as a model for a democratic national tradition.35 The people in the eastern area, which became known as Slovakia,36 developed contrasting attitudes. 37 The Slovaks were influenced by the more eastern Magyar culture.38 They were much more conservative than the Czechs, 39 and their society remained agrarian.' In addition, they were strictly Roman Catholic.41 These differences not only gave the Slovaks a sense of a separate identity,42 but led to dissension within the new state after the First World War at a time when this identity was ignored by the leadership in Prague.43 During the First World War, when Czechs and Slovaks were together fighting the Austro-Hungarian Empire," it appeared as if both peoples could live in one country under a federal government.45 In October 1915, Czech and Slovak organizations signed an agreement in , Ohio.46 This document called for the independence of the Czech lands and Slovakia.47 It also demanded "the unity of the Czech and Slovak nation in a federal state with total national autonomy for Slovakia, with its own parliament, state administration, complete cultural freedom, the full use of the .""

33. See THOMSON, supra note 16, at 193-94, 196; see generally BRADLEY, supra note 32. 34. See HAJEK, supra note 14, at 19. 35. THOMSON, supra note 16, at 109-10; see MASARYK, supra note 32, at 21. 36. THOMSON, supra note 16, at 12. 37. See Roueek, supra note 5, at 15. 38. See KUNOSI, supra note 16, at 13; THOMSON, supra note 16, at 12; see Roucek, supra note 5, at 185. 39. EL MALLAKH, supra note 6, at 31. 40. See KuNosi, supra note 16, at 29; see WALTERS, supra note 14, at 202. 41. See Roucek, supra note 5, at 185; see STEINER, supra note 8, at 24; see LEFF, supra note 8, at 22-23; see THOMSON, supra note 16, at 334-35; see STREET, supra note 28, at 67; YESHAYAHU JEL1NEK, THE LusT FOR PowER: NATIONALISM, SLOVAKLA, AND THE COMMUNISrs 1918- 1948, at 5 (1983). 42. See STEINER, supra note 8, at 7. 43. See LEFF, supra note 8, at 63; see JELINEK, supra note 41, at 5. 44. See KuNOsi, supra note 16, at 19-21. 45. See EL MALLAKH, supra note 6, at 32; see THOMSON, supra note 16, at 290. 46. STEINER, supra note 8, at 18-19. 47. Id. at 18; see EL MALLAKH, supra note 6, at 32. 48. STEINER, supra note 8, at 18-19; see EL MALLAKH, supra note 6, at 32. Large numbers 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION

Another similar agreement was drafted in , in 191841 and signed by Thomas Masaryk.5° This agreement provided that Slovakia would have its own administrative system, its own diet, and its own courts.5" At the Versailles Peace Conference in 1919, the future leaders of Czechoslovakia spoke of creating a multinational country comparable to Switzerland.52 Contrary to these promises, after the Czechoslovak Republic was established, the government in Prague was not eager to introduce the promised autonomy.53 Rather, a policy of centralization was implemented.'M Official speeches spoke of a single "Czechoslovak nation."" The Constituent Assembly,56 a body that had not been elected of Slovaks had emigrated to the United States. This agreement and the 1918 agreement were signed in the United States in order to maintain continued Slovak support of the Czechoslovak cause. The Czech leaders believed that the efforts of the Slovak-Americans were needed in order to gain American recognition of that cause. LETrRICH, supra note 12, at 52-53. 49. THOMSON, supra note 16, at 314; STEINER, supra note 8,at 18; ELMALLAKH, supranote 6, at 32. The provides:

The representatives of the Slovak and Czech organizations in the United States, the Slovak League, the Czech National Alliance and the Federation of Czech Catholics deliberating in the presence of the Chairman of the Czechoslovak National Council, Professor Masaryk, on the Czechoslovak question and on our previous declaration of program, have passed the following resolution:

We approve of the political program which aims at the union of the Czechs and Slovaks in an independentState composed ofthe Czech Lands and Slovakia. Slovakia shall have her own administrative system, her own diet and her own courts. The Slovak language shall be the official language in the schools, in the public offices and in public affairs generally. The Czechoslovak State shall be a republic, and its constitution a democratic one. The organization of the collaboration between Czechs and Slovaks in the United States shall, according to need and the changing situation, be intensified and regulated by mutual. Detailed provisions relating to the organization of the Czechoslovak State shall be left to the liberated Czechs and Slovaks and their duly accredited representatives. EL MALLAKH, supra note 6, at 32. 50. EL MALLAKH, supra note 6, at 32. 51. Id.; THOMSON, supra note 16, at 314; STEINER, supra note 8, at 18. 52. LEFF,supra note 8, at 137-38; HAIEX, supra note 14, at 25; EL MALLAKH, supranote 6, at 35. 53. HUGH SETON-WATSON, EASTERN EUROPE BETWEEN THE WARS: 1918-1941, at 175 (1946). 54. Id. at 175-76. 55. Id. at 176. 56. THE CONSTITUTIONALCHARTER OF THE CZECHOSLOVAK REPUBLIC, reprintedin SELECT N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 by the people, was formed in November 1918, three days after the end of the First World War,57 promulgated the Constitution of 1920, which reflected this political turnabout. Article 3(1) of the Constitution states that "the territories of the Czechoslovak Republic shall form a united and indivisible unit. "58 The centralist orientation of this document is also demonstrated by the way in which it allocated legislative power. Article 6(1) provided that such power shall be exercised by the National Assembly "over the whole territory of the Czechoslovak Republic." 59 It also clearly designated Prague, the capital of the Czech lands, as the location for the National Assembly.' In addition, article 7(2) mandated that laws passed by the National Assembly "shall be binding throughout the Czechoslovak Republic. "61 As far as judicial power is concerned, article 95(2) authorized the establishment of a supreme court that would have jurisdiction over "the entire territory of the Czechoslovak Republic. "62 Thus, the Constitution of 1920 directly contravened the provisions of the Pittsburgh Agreement63 in that Slovakia was given neither a separate legislature, a separate court, nor any autonomy whatsoever. 64 Furthermore, the constitution did not acknowledge the Slovaks as a people with their own identity.65 Indeed, it only referred to the "Czechoslovak people. "' The unitary character of the new state as enshrined in the Constitution was largely a result of Czech attitudes pertaining to the new nation itself

CONSTITUTIONS OF THE WORLD 140 (1922) [hereinafter CONSTITUTIONAL CHARTER]. 57. Id. 58. Id. at 145. 59. Id. at 146. Article 6 states:

1. Legislative power over the whole territory of the Czechoslovak Republic shall be exercised by the National Assembly, which shall be composed of two Chambers: a Chamber of Deputies and a Senate. 2. The seat of both Chambers shall be at Prague. In case of absolute necessity, the National Assembly may be temporarily convened at some other place in the Czechoslovak Republic. Id. 60. Id. 61. Id. 62. Id. at 162. 63. See EL MALLAKH, supra note 6, at 35. 64. See generally CONSTITUTIONAL CHARTER, supra note 56, at 143-67. 65. Id. 66. ld. 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION 105

and to the Slovaks.67 The leadership of the new state was mostly Czech."8 It developed the concept of "," 69 which was intended to instill a sense of unity between the two peoples that had been politically and culturally separated for nearly one-thousand years.70 The Czech leaders did not conceive of Czechs and Slovaks as separate entities.71 Doctor Boucek, the official in charge of the formal presentation of the constitution before the Constituent Assembly, contended that centralization was the desire of the entire Czechoslovak nation. 72 However, the Czech conception of Czechoslovak unity was very paternalistic towards the Slovaks. 73 The Czechs viewed the movement towards unity as a process by which the western and more modern Czech branch of the nation would "rescue" the eastern, backward Slovaks.74 President Masaryk's beliefs concerning the Slovaks also greatly influenced Czechoslovakia's constitutional structure. It was his moral and political vision that had played a major part in liberating the country. Masaryk's mother raised him in her Czech tradition; he viewed himself as a Czech, 76 although his father was Slovak.' Therefore, he believed that, rather than two separate nations, the Czechs and Slovaks were brothers.78 it would He was convinced that if a separate Slovak identity existed 80 disappear 79 and visualized the Czechs and Slovaks becoming one people. It was due to these convictions that, once Czechoslovakia became an independent nation, he did not seriously consider creating a federal system under which the Slovaks would be granted a certain amount of

67. See Leff, supra note 8, at 37-3 8. 68. See id. 69. Id.at 133. 70. Id.at 134. 71. Id.at 181-82. 72. Id.at 134. 73. See id. 74. See id. 75. See id. at 61. 76. See HAJEK, supra note 14, at 1 77. THOMSON, supra note 16, at 23'3; ZEMAN, supra note 24, at 16. 78. See LEFF, supra note 8, at 138. 79. See OWEN JOHNSON, SLOVAKIA 19'18-1938: EDUCATION AND THE MAKNG OF A NATION 327 (1985). 80. ZEMAN, supra note 24, at 128. 106 N.Y.L. SCH. J. INT'L & CoMP. L. [Vol. 13 autonomy. 8t In fact, he later indicated that he only signed the Pittsburgh agreement in order to retain the support of the Slovaks in America. 82 The failure of Masaryk and other Czech leaders to acknowledge the legitimacy of the Slovak desire for autonomy only served to exacerbate the differences between the two peoples. 83 The Pittsburgh Agreement demonstrates two things. On the one hand, during the First World War, the Slovaks enthusiastically supported a union with the Czechs." Even before the war, Father , who later became the leading figure in the Slovak autonomy movement, 5 expressed his belief that it was necessary to effect a union of Czechs and Slovaks. 86 On the other hand, the Slovaks generally, and Hlinka specifically, wanted to participate in the Czechoslovak state as a nation distinct from and equal to the Czechs. 7 Thus, both during and immediately after the First World War, the Slovaks merely wished for the Czech recognition of a separate Slovak national identity. 8 A constitutional guarantee to the effect that Slovakia would gain autonomy after a specified period of time might have represented sufficient recognition of Slovak nationhood. 9 Yet no such promise was included in the constitution." This lack of acknowledgment began the process of alienation among the Slovaks.9 1 Within this context of disappointed hopes, the disparities between Czech and Slovak culture only increased the antagonism that Slovaks felt towards the young republic.92 The staunchly Catholic Slovaks, already disconcerted by the Czech tradition of espousing anti-clericalism, 93 were greatly angered when the Prague government instituted a policy of seizing secondary schools from the Catholic Church and placing them under state

%1. See EL MALLAKH, supra note 6, at 33. 82. See id. Masaryk admitted that the Pittsburgh Agreement was merely reached so as to appease that faction of Slovaks which desired independence for Slovakia. Id. 83. See KORBEL, supra note 11, at 101. 84. EL MALLAKH, supra note 6, at 37. 85. Id. at 21. 86. Id. at 36. 87. Id. 88. JOHNSON, supra note 79, at 332. 89. KoRBEL, supra note 11, at 101. 90. Id. 91. Id. 92. See EL MALLAKH, supra note 6, at 46. 93. LEFF, supra note 8, at 22-23; JELINEK, supra note 41, at 5. 19921 CZECHOSLOVAKIA'S NEW CONSTITUTION control.' They also were disturbed by the Czech preference for placing members of the minority Slovak Protestant community in positions of importance. 9 The social and economic differences between Czechs and Slovaks also contributed towards the growth of bitterness among the Slovaks.9 6 Since Czech society was highly industrialized, the Prague government was preoccupied with industrial problems such as the rights of trade unions, workers' hours, and social security. 97 At this time, the plight of Slovak farmers needed much attention.9 They suffered because of loss of access to foreign markets during the war99 and continued to struggle afterwards due to the increase in value of Czechoslovak currency, which caused the prices of agricultural commodities such as wheat to fall drastically. 00 Yet their troubles, compounded in the 1930s by the Depression, ' ' were for the most part overlooked by the central government.10 2 As a result, Slovak resentment towards the Prague government multiplied.10 3 The Slovak electorate became radicalized, supporting either Father Hlinka's rightist Slovak People's Party or the Communists." In the 1920s, the number of Slovaks voting for Hlinka's party had more than doubled. 5 Czech paternalism also infuriated the Slovaks."0 Most teachers and officials in Slovakia were Czech. 10 7 Their condescending approach to giving aid to the Slovaks in overcoming their "backwardness" only worsened relations between the two peoples. 08 At the same time the constitution was introduced, the Language Law was passed. 10 9 It

94. EL MALLAKH, supra note 6, at 42; see also JOHNSON, supra note 79, at 319. 95. JELINEK, supra note 41, at 5. 96. WALTERS, supra note 14, at 202. 97. Id. 98. Id. 99. Id. 100. EL MALLAKH, supra note 6, at 43. 101. Id. 102. WALTERS, supra note 14, at 202. 103. Id. 104. Id. 105. JELIFX, supra note 41, at 9. 106. HuGH SroN-WATsON, Tim "SicK HEART" Ov MOmERN EuROPE: THE PROBLEM OF THm DANUBIAN LANDS 34 (1975). 107. Id. 108. Id. 109. LETTRICH, supra note 12, at 57. N.Y.L. SCH. J. INT'L & CoMi. L. [Vol. 13 proclaimed that the official language of the new country was to be "Czechoslovak.""' The condescending attitude of the Czechs, in combination with the Language Law, convinced the Slovaks that the Czech officials in Prague and in Slovakia intended to transform the Slovaks into Czechs."' This only further embittered the Slovaks"' and caused them to view themselves more as Slovak nationals than as citizens of Czechoslovakia.' These social influences caused Czechoslovakia to become extremely polarized in the mid-1930s." 4 The Slovak nationalists, particularly Hlinka's party, became more strident in their demands. 5 By 1938 most of the electorate in Slovakia were opposed to the central government in Prague." 6 This opposition constituted a basic weakness in the structure of the country, which Hitler was able to exploit as he worked to destroy Czechoslovakia's sovereignty." 7 Thus, the original failure of the Constitution of 1920 to grant the Slovaks the autonomy that they had been repeatedly promised created a political system and a pattern of relations that undermined the existence of Czechoslovakia as an independent country. 1 I

IlI. MODERN TIMES

In 1990, the newly emerging democracy of Czechoslovakia bore some resemblance to the interwar Czechoslovakia in that it too was compelled to contend with Slovak nationalism." 9 The significant differences between Czechs and Slovaks had not disappeared.' For instance, Slovaks remained fervently Catholic' and continued to resist sudden change such

110. Id. at 57-58. 111. SETON-WATSON, supra note 106, at 34. 112. Id. 113. KORBEL, supra note 11, at 101. 114. LEFF, supra note 8, at 63. 115. Id. 116. EL MALLAKH, supra note 6, at 87. 117. Id. 118. WALTERS, supra note 14, at 201. 119. Valerie Bunce, The Strugglefor LiberalDemocracy in Eastern Europe, WORLD POL'Y J., Summer 1990, at 427. 120. See Knight, supra note 2, at 45. 121. ld. 19921 CZECHOSLOVAKIA'S NEW CONSTITUTION as radical economic reform." In addition, some Slovaks were calling for outright secession. " Nevertheless, important reforms that were introduced in 1968-69 markedly altered the country's constitutional system'2' in a way that nearly aided in preserving a unified, democratic Czechoslovakia.

A. Federalization

In 1968 a constitutional law was introduced at the initiative of 125 1 6 Dubeck, a Slovak, 1 that rendered basic alterations in the political 12 structure of the country. 1 It transformed Czechoslovakia from a centralist, unitary system into a federation composed of two republics, one Czech and one Slovak.1 28 While the Soviet invasion in 1968 delayed the practical application of the new law, 121 it was implemented in 1969130 by Husak, also a Slovak."' The Action Program, the official document addressing this reform, echoes the Slovak aspirations for autonomy 132 that were summarily dismissed during the interwar period.133 It first refers to Czechoslovakia as a "joint state of two equal nations," 34 and then explains that the relationship between the two nations must be constitutionally structured so as "to strengthen the unity of the state." 35 More importantly, it admits that there were vital flaws in the centralist constitutional system since 1920.136

122. Id. 123. Id. 124. EL MALLAKH, supra note 6, at 4. 125. Id. at 1. 126. See STEINER, supra note 8, at 182. 127. id. at 197. 128. Id. 129. EL MALLAKH, supra note 6, at 4. 130. Id. 131. Id. at 5-6. 132. Id. at 1-2. 133. See id. at 1. 134. Id. at 2. 135. ld. 136. Id. The document states that "itcannot be denied that ...there are serious faults and fundamental deformation in the constitutional arrangement of relations between the Czechs and Slovaks." Id. 110 N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13

Constitutional Act Number 143' reflects these beliefs. 138 It represents a radical departure from the Constitution of 1920 and the Communist Constitutions of 1948 and 1960.139 While the Constitution of 1948, unlike that of 1920, acknowledged that the country is composed of two Slav nations, the Czechs and the Slovaks 140 it clearly and unequivocally established that "[tihe Czechoslovak Republic is a unitary 14 state." ' The Constitution of 1960 also contains this statement. 142 In contrast to this language, article 1(1) of Constitutional Act Number 143 provides that Czechoslovakia is a "federative state. "143 Article 1(2) of the Act states that Czechoslovakia is composed of the "equal, national states of the Czech and the Slovak nations."" Furthermore, it recognizes that each nation possesses the right of self-determination. t45 Section 3 refers to the Czechs and the Slovaks as "two independent, sovereign nations" 146 and section 4 formally asserts that Czechoslovakia consists of two republics, the Czech Socialist Republic and Slovak Socialist Republic.' 47 More significantly, section 5 requires the central government to "respect the sovereignty of the two national states."1 48 These provisions exemplify the clear divergence of the49 Act from the direction the Constitution of 1920 set for the nation. 1

137. Constitutional Act Number 143, reprintedinCONSTITUTIONSOF THE COUNTRIES OFTHE WORLD, at 33 (Albert P. Blaustein & Gisbert H. Flanz eds., 1974) [hereinafter Constitutional Act]. 138. See EL MALLAKH, supra note 6, at 4. 139. See STEINER, supra note 8, at 197-201. 140. Constitution of the CzechoslovakRepublic, reprintedin 1 CONSTITUTIONS OF NATIONS, at 603 (Amos 1. Peaslee ed. 1950). 141. Id. 142. Constitution of Czechoslovakia, reprinted in 3 CONSTITUTIONS OF NATIONS, at 227 (Amos J.Peaslee 3rd ed. 1968). 143. Constitutional Act, supra note 137, at 36. 144. Id. Article 1(2) provides: "The Czechoslovak Socialist Republic is founded on the voluntary bond of the equal, national states of the Czech and Slovak nations, based on the right of each of these nations to self-determination." Id. 145. id. 146. Id. 147. Id. Article 1(4) provides: "The Czechoslovak Socialist Republic and the Slovak Socialist Republic. Both Republics shall have equal position within the Czechoslovak Socialist Republic." Id. 148. Id. 149. STEINER, supra note 8, at 197. 19921 CZECHOSLOVAKIA'S NEW CONSTITUTION

The new federal system offered a formula that enabled Czechs and Slovaks to carry on their individual, national lives within one state.15 0 This was the very form of government for which Slovak nationalists strived after the First World War and that foreign political experts believed to be extremely workable."' The Slovaks believed through 1968 that federalization would supply a governmental structure that would endow them with political security and national recognition.5 2 Thus, the Slovaks welcomed the new federation' because it removed the obstacles that the Constitution of 1920 placed in the way of their gaining control over internal politics.' 5 On the other hand, the Czech population understood that, due to the destructive divisiveness caused by the centralist system in the past, federalization was a matter of practical necessity."'

B. Post-Communist, Democratic Czechoslovakia

Despite laws introduced in 1970 to weaken the federation in order to preserve the Communist party's control over the entire country," 6 Czechoslovakia maintained its federalized system, in form, if not in substance."5 7 Consequently, in June 1990, democratic Czechoslovakia had three freely elected governments: federal, Czech, and Slovak.' s In an early draft of the constitution presented by the Civic Forum, 5 9 the movement that led the democratic movement in 1989,160 the influence of

150. Id. at 201. 151. LEFF, supra note 8, at 85. 152. Id. 153. STERNER, supra note 8, at 201. 154. LEFF, supra note 8, at 122. 155. Id. at 125. 156. Domestic Service, Aug. 19, 1990, translated and reprinted in Slovak Leaders Discuss Tripartite Meeting, FBIS-EEU-90-162, Aug. 21, 1990, at 10 [hereinafter Slovak Leaders]. 157. ELm ABEL, THE SHArrERED BLOC: BEHIND THE UPHEAVAL INEASTERN EUROPE 71 (1990). 158. Timothy G. Ash, Eastern Europe: Apres le Deluge, Nous, N.Y. REV. BOOKS, Aug. 16, 1990, at 55. 159. CzechoslovakDraft Constitution, reprintedin PRAVDA, Dec. 8, 1989, at 4, translated and reprinted in Draft Constitution presented by Civic Forum, FBIS-EEU-89-243, Dec. 20, 1989, at 27-29 [hereinafter Draft Constitution]. 160. Jiri Pehe, Czechoslovakia'sChanging PoliticalSpectrum, RFE/RL RESEARCH REPORT, Jan. 31, 1992, at 1. N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 the constitutional law which federalized the country is evident. 61 Principle Number 2 of the draft constitution expresses the tenet that the Czechoslovak Republic itself is based upon the concept of "the the Czech and Slovak nations. "162 sovereignty, equality, and statehood of 1 63 It also acknowledges the right of the two nations to self-determination. In addition, it authorizes the adoption of constitutions by the individual sovereign republics that will "independently and sui juris determine their internal relations."" This draft constitution, unlike Czechoslovakia's last democratic Constitution of 1920, fulfills the spirit of the Pittsburgh agreement. It unequivocally acknowledges Slovak autonomy. The president and the premier of the first modem, democratic government of Czechoslovakia, as opposed to Masaryk and the other interwar Czech leaders, recognized the need to construct a framework of government that would provide the Slovaks with sufficient control over 16 166 their internal political affairs. ' The Slovak premier of Czechoslovakia, Marian Calfa,167 emphasized his commitment to transferring influence back to the republics and building the democratic federation out of the will of 16 169 the people. 1 President Havel, a Czech,' also dedicated himself to working towards the creation of an authentic federation. 70 He indicated

161. See generally Draft Constitution, supra note 159. 162. Id. at 28. Principle Number 2 provides:

The foundation of the Czechoslovak Republic is the principle of sovereignty, equality, and statehood of the Czech and Slovak nations. The Czech and Slovak nations are guaranteed the right to self-determination, including the right to secede. The rights of other nationalities and ethnic groups living in our common fatherland are fully respected. The principles of sovereign Czech and Slovak republics lead to the logical requirement to confirm them by adopting constitutions of the individual republics which will independently and sui juris determine their internal relations. Id. 163. Id. 164. Id. 165. See Czechoslovak TV, July 20, 1990, translated and reprinted in Interview with Premier Marian Calfa, BBC; SWB, EE/0825, July 25, 1990, at B/i [hereinafter Interview with Calfa]; see Havel, supra note 9. Havel emphasized that he felt a special obligation to ensure that the interests of the Slovak nation were protected. Id. 166. See Interview with Calfa, supra note 165. 167. Id. 168. Id. 169. Havel, supra note 9, at 259. 170. See SVOBODNE SLOVO, June 30, 1990, translatedand reprintedin Havel on Elections, Federation, FBIS-EEU-90-131, July 9, 1990, at 46. 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION his cognizance of the Slovak people's need to assert a national existence .'7 1 Havel also articulated his disapproval of the centralist direction of the interwar centralist Czechoslovak state. For example, he stated that the concept of "one Czechoslovak people" was "unfortunate" 72 and criticized continuing Czech paternalism as well.' 73 In addition, the president firmly stressed that, if a true federation was to be established, the Czech people must purge themselves of their "arrogant, overbearing, paternalistic, and avuncular attitude toward the Slovaks."" The premier of the during this time, Peter Pithart, advanced similar sentiments. He contended that the age of Czechoslovakism is past and that a greater awareness of the Slovak nation should be fostered among Czechs. "I Premier Pithart explicitly acknowledged that the Slovaks have their own identity and are a sovereign 76 nation. 1 In the months following the elections of June 1990, leaders of both republics and the federal government took decisive steps towards creating a genuine federation. In July 1990, the Czech and Slovak premiers, together with President Havel, developed a plan for the future federative 77 arrangement of the Czechoslovak state.' The plan re-emphasized the78 status of the Czech Republic and Slovak Republic as two equal entities. The two republics would only surrender some of their rights in order to achieve mutual benefits. 179 The plan supported the creation of two republican constitutions that would be similar in many ways but contain those differences that suited the particular conditions in each republic." 0

171. Prague Home Service, Sept. 17, 1990, translatedand reprinted in Speech by Havel on Roles of Republics and Federation, BBC; SWB, EE/0973, Sept. 19, 1990, at C11 [hereinafter Speech by Havel]. 172. Id. 173. VEREJNOST, May 19, 1990, translatedand reprinted in Havel Discusses Czech-Slovak Relations, FBIS-EEU-90-107, June 4, 1990, at 25 [hereinafter Havel Discusses Czech-Slovak Relations]. Havel admitted that it is Czech paternalism, rather than Czech patriotism, which angers the Slovaks. Id. Havel stated that paternalism on the part of the Czechs only causes the Slovaks to further distrust the Czechs as well as provoking sentiments of radical nationalism amongst the Slovaks. Speech by Havel, supra note 171, at Cl/2. 174. Havel Discusses Czech-Slovak Relations, supra note 173, at 25. 175. Prague Domestic Service, Apr. 23, 1990, translated and reprinted in Further on Pithart Statements, FBIS-EEU-90-079, Apr. 24, 1990, at 20. 176. Id. 177. NARODNA OBRODA, July 17, 1990, translatedand reprinted in Slovakia's Position in Federation Reconsidered, FBIS-EEU-90-142, July 24, 1990, at 18. 178. Id. 179. Id. 180. Id. One example of such a difference is that within the Czech lands there would be N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13

One month later, further movement was taken towards bestowing those powers on the republics that they were promised in 1968.181 In early August 1990, meetings took place in Trencianske Teplice among the Czech, Slovak, and federal premiers.' 82 All three premiers once again agreed that the interests of the Czech and Slovak nations are best served by a federative arrangement which allows for the sovereignty, independence, and equal status of both republics."8 3 They reached a joint conclusion that the federation is the union of two sovereign and equal republics.' Moreover, they recognized the principle that it is the have the right to transfer authority to the federation and not republics that 5 the other way around.1 At the August meetings, plans were made for the establishment of nine expert commissions to evaluate the relations between the federal government and the republics.186 On the basis of their conclusions, the commissions would devise draft legislative amendments to the governments of the republics and their respective legislatures, the Czech and Slovak National Councils."8 7 The national councils would then present the draft laws to the Federal Assembly, the legislature of the federal government.' 88 Thus, legislative power would emanate from the legislatures of the separate republics."8 9 Another important development at the meetings was the decision that the constitutions of the republics

territorial divisions in the cases of and Silesia. There would be no such divisions in Slovakia. Id. 181. See Speech by Havel, supra note 171, at Cl/1. Havel explained that after 1968, the federation became only "a different administrative form of the same totalitarian centralism which had been characteristic for the previous years." Id. 182. Bratislava Domestic Service, Aug. 27, 1990, translated and reprinted in Slovak Premier on Intergovernmental Talks, FBIS-EEU-90-169, Aug. 30, 1990, at 10 [hereinafter Slovak Premier]. 183. Id. 184. Id. 185. Id. 186. Id. at 14. The commissions involved concerned the: external economic and trade relations; communications and all types of transportation; energy policy; metallurgy and fuels; the labor market and social policy; demonopolization; and the organization and legal regulation of radio and television. HOSPODARSKE NOVINY, Aug. 14, 1990, translatedand reprinted in Proposals for Republican Governments' Jurisdiction, FBIS-EEU-90-162, Aug. 21, 1990, at 16 [hereinafter Republican Governmentsl. 187. Slovak Premier, supra note 182, at 14. 188. Id. 189. Id. 19921 CZECHOSLOVAKIA'S NEW CONSTITUTION would be adopted in one year rather than the projected two-year period. 190 The premiers also concluded that the federal constitution would be adopted after the adoption of the republican constitutions so that its provisions would be derived from them."9' Subsequent talks between the three premiers took place on November 13, 1990, at the Hrzan Palace in Prague. 192 During this meeting, the premiers not only confirmed the agreement reached at Trencianske Teplice, but expanded upon it. 193 They drafted a constitutional bill concerning the division of powers between the republics and the federation. 1"4 This power-sharing bill gave the republics the ability to create separate budgets and to conclude international treaties. 95 However, foreign trade, the central bank, taxation, and price reform remained under the control of the federal government. 96 Despite these advancements, disagreements persisted between Czechs and Slovaks concerning the amount of power that the republics would possess in relation to the federal government. 97 At this time, even President Havel demonstrated the limits of his support of republican power.' 98 He described the federation as "a voluntary abandoning of a part of one's sovereignty for the benefit of the sovereignty of a higher order. "'9 Additionally, he asserted his belief that federal institutions must

190. Id. at 15. 191. Id. 192. Prague Domestic Service, Nov. 14, 1990, translatedand reprintedin Pithart Recounts Talks Between Prime Ministers, FBIS-EEU-90-221, Nov. 15, 1990, at 17. 193. Id. 194. Id. 195. Leslie Collitt, Agreement Averts Czech-Slovak Split, FIN. TIMES, Nov. 15, 1990, §1, at 2. 196. Id. 197. See Speech by Havel, supra note 171, at Cl/1. In general, Slovaks were eager to accomplish the transfer of power to the republics as quickly as possible while Czechs were not as displeased with the situation and so were not impatient to bring about a dramatic redistribution of power. See id. 198. Id. at CI/2. 199. Id. Havel pronounced that in an authentic federation both republican governments would delegate certain powers to the Federal Government. Id. 116 N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 be respected and "actively created. 2 Havel also argued that "without a strong Federation there can be no strong republics."2I 1 During this period, there were also those who did not believe that the federation should exist at all. While one alternative provided for a confederative arrangement between the Czech and Slovak republics, 2 some Slovak political parties, particularly the Slovak National Party, went even further and advocated that Slovakia become a totally independent republic.2"3 One Czech party called for a referendum on the future of the country." 4 Surveys showed that many Czechs felt that, if the Slovaks wanted to leave the federation, then "let them. "205 In the weeks immediately following the agreement at the Hrzan Palace, these differences surfaced in a destructive manner and threatened to result in a dissolution of the federation. 21 The power-sharing bill was presented for approval before the Slovak and Czech National Councils.20 7 The Slovak National Council approved the bill without amending it, but the Czech National Council made several changes. 20 One of the amendments that most disturbed the Slovaks concerned the provision dealing with the central bank. 2° Under the compromise reached at the Hrzan Palace, the central bank was to be governed by a board consisting of the same number of Czechs and Slovaks, who were to be in office for

200. Id. The president expressed his belief that, while extensive decentralization should take place, there was a need "to build anew all the organs of our Federation... to seek their new role, to delimit their contents . . . and respect them in a similar way as citizens of California or Texas respect the powers of all the Federal institutions of the U.S.A." Id. at C1/3. 201. Id. at C1/2. 202. Today's Press Survey, CTK National News Wire, Nov. 30, 1991, available in LEXIS, Nexis Library, CTK File. 203. Bratislava Domestic Service, Aug. 14, 1990, translated and reprinted in 10 Slovak Parties Advocate Independence, FBIS-EEU-90-158, Aug. 15, 1990, at 13. 204. CTK, Aug. 15, 1990, reprintedin Democratic Forum Urges Referendum, FBIS-EEU- 90-159, Aug. 16, 1990, at 12. 205. NARODNA OBRODA, July 26, 1990, translatedand reprintedin Meciaron Czech, Slovak Relations, FBIS-EEU-90-148, Aug. 1, 1990, at 20. 206. Burton Bollag, Havel Asserts Nation Faces Breakup, N.Y. TIMES, Dec. 11, 1990, at A12. 207. Id. 208. Parliamentto Start Debate on Power-Sharing, CTK National News Wire, Dec. 10, 1990, available in LEXIS, Nexis Library, CTK File. 209. Id. 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION one year and alternate for the one-year terms.21° The Czech National Council dropped this provision from the bill.2" The most divisive issue concerned the Czechoslovak section of the international pipelines carrying oil and gas from the Soviet Union to western and southern Europe. The Czechs wanted the pipeline to remain under the control of the federal government. 213 The Slovaks wanted some kind of alternate arrangement through which they would more directly receive their share of the revenues that flowed from the pipeline. 2 4 A personal and more heated tone was added to this dispute when the federal economy minister, Vladimir Dlouhy, publicly criticized the Slovak premier, Vladimir Meciar, for insisting that the federal govern- ment relinquish its control over the pipeline.215 Consequently, matters quickly deteriorated to the point at which a constitutional crisis threatened to tear apart the federation.21 6 In early December 1990, the Slovak premier threatened that, if the power-sharing bill was not adopted by the Federal Assembly in the form agreed to at the 14rzan Palace, Slovakia would ignore the authority of the federal 21 government. 17 At this juncture, President Havel intervened. During a televised address to the Federal Assembly on December 10, he asked for special powers to prevent a breakup of the country. 21 8 He also pleaded for reconciliation. 19 As a result of President Havel's efforts, two days later, a power- sharing bill was passed by the Federal Assembly. 220 The bill, while not acceding completely to Slovak demands, contained provisions that were more acceptable to the Slovaks than the amendments proposed by the Czech National Council.221 Under the bill, the presidency of the central

210. Id. 211. Id. 212. Id. 213. Slovak PremierDenies Being Pressedto Resign, BBC; SWB, Dec. 6, 1990, available in LEXIS, Nexis Library, BBCSWB File. 214. FederalEconomy Minister Criticizes Slovak Positionon PipelineDivision, BBC; SWB, Dec. 1, 1990, available in LEXIS, Nexis Library, BBCSWB File. 215. Id. 216. Bollag, supra note 206, at 12. 217. Id. 218. Id. 219. Id. 220. Tagliabue, supra note 13, at All. 221. Id. N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 bank would rotate between the Czech lands and Slovakia every year. 22 In addition, a joint-stock corporation would be established to oversee the oil and gas pipeline. 223 Thus, the pipeline would no longer be under the direct control of the federal government.2 Further tension occurred throughout 1991 as work intensified on the preparation of the new constitutions. 2z In April 1991, the Slovak government, under its new premier, Jan Carnogursky, began to promote the concept of a Slovak constitution in which the equality of the Czech and Slovak Republics would be based on a treaty concluded between them.226 This proposal initiated a series of talks concerning the nature and content of the treaty.227 Significant progress was made at meetings that took place in June, in Kromeriz, among President Havel and representatives of the three governments and various political parties.228 The participants agreed that the Czech and Slovak National Councils, as the highest representative bodies of the two republics, would enter into a treaty concerning the constitutional configuration of the common state. 2 This treaty would delineate the extent of the federation's powers. 3 Despite the advances made at Kromeriz, lingering disagreements sabotaged subsequent talks. The Czechs insisted that the treaty should merely possess the character of a legislative initiative.1 They viewed it only as a guideline for the constitutions.232 However, the Slovaks believed that the treaty should

222. Id. 223. Id. 224. Steve Kettle, Czechoslovak ParliamentApproves Power-SharingLaw, Reuters, Dec. 12, 1990, available in LEXIS, Nexis Library, REUTER File. 225. New Talks on CSFR Setup, Constitutions, Power-Sharing Open, CTK National News Wire, Oct. 17, 1991, available in LEXIS, Nexis Library, CTK File [hereinafter New Talks]. 226. Chairman of ChristianDemocrats Appointed New Slovak Premier, CTK National News Wire, Apr. 23, 1991, available in LEXIS, Nexis Library, CTK File. Carnogursky replaced Vladimir Meciar who was recalled subsequent to his forming a breakaway faction of the Public Against Violence Movement. Id. The dissension in the movement was caused primarily by disputes concerning economic reform. Today's Press Survey, CTK National News Wire, Mar. 8, 1992, available in LEXIS, Nexis Library, CTK File. 227. New Talks, supra note 225. 228. ConstitutionalTalks in Kromeriz, BBC; SWB, June 19, 1991, available in LEXIS, Nexis Library, BBCSWB File. 229. Id. The treaty would affirm the commitment of the citizens of both republics to live in a common state. Id. 230. Id. 231. Slovak Premier on Stirin Talks and Work of his Government, BBC; SWB, Oct. 28, 1991, available in LEXIS, Nexis Library, BBCSWB File. 232. Czechoslovak ParliamentThrows Out Referendum on Split, The Reuter Library Report, 19921 CZECHOSLOVAKIA'S NEW CONSTITUTION possess the binding force of a legal act 233 and should form the basis for the new federal and republican constitutions.3 4 The two sides also disagreed on specifics relating to the division of powers between the federation and the two republics." After these differences caused talks between the presidiums of the two national councils to fail in November 1991, President Havel once again intervened. In a nationally televised address, he proposed several constitutional amendments that would allow him, without parliamentary approval, to call for a referendum on the future of Czechoslovakia.236 In addition, in early December, the president mediated the sensitive budget talks that took place in Brno between representatives of the two republics and the federation.237 He arrived at a solution that allowed both republics to receive a greater allocation of funds from the federal budget.238 President Havel subsequently stated that the budget agreement represented a recognition on the part of the republics of their joint responsibility for the immediate future of the common state. z" He further asserted that the common state must redistribute its resources according to the needs of its particular regions." Thus, the budget agreement entailed a significant redistribution of resources to Slovakia, which has experienced high levels of unemployment as well as rising prices due to the federal government's economic reforms. 1 Consequently, the Slovak government

Nov. 13, 1991, available in LEXIS, Nexis Library, LBYRPT File [hereinafter Czechoslovak Parliament]. 233. President Havel Spends Working Day in BratislavaMeets New Slovak Government, BBC; SWB, May 18, 1991, available in LEXIS, Nexis Library, BBCSWB File. 234. Czechoslovak Parliament,supra note 232. 235. Czechoslovak President Calls for Reasoned Reflection, CTK National News Wire, Nov. 11, 1991, available in LEXIS, Nexis Library, CTK File. 236. Henry Kamm, As Slovak Separatism Gains, Havel Faces the Unthinkable, N.Y. TIMEs, Nov. 20, 1991, at Al, A16. Havel also proposed the formation of an independent federal council, which would include members of the two national councils, enabling the republics to have a greater role in federal decisions. In Prague, Havel Seeks New Powers, Cm. TRIB., Nov. 18, 1991, at 9. 237. Czech, Slovak Republics to Get Bigger Budget Slices, CTK National News Wire, Dec. 4, 1991, available in LEXIS, Nexis Library, CTK File. 238. Id. 239. Federaland Republican Leaders Reach Agreement on Budget at Brno Meeting, BBC; SWB, Dec. 9, 1991, available in LEXIS, Nexis Library, BBCSWB File. 240. Id. 241. Rudolf Prevatil, Czechoslovakia:Czechs andSlovaks Might Stick Together, Inter Press Service, Dec. 11, 1991 available in LEXIS, Nexis Library, INPRES File; Today's Press Survey, CTK National News Wire, Jan. 7, 1992, available in LEXIS, Nexis Library, CTK N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 wished to limit the powers of the federation, whereas the Czechs envisioned a more expansive role for that federation.242 Nevertheless, in early 1992, as talks continued between the two republican governments, most of the contentious issues concerning the treaty had been resolved." Therefore, in February 1992, a joint commission of the Czech and Slovak National Councils met in Milvoy and completed a draft agreement on the future constitutional structure of Czechoslovakia.' However, the presidium of the Slovak National Council failed to approve this draft agreement. 4 5 The text of the agreement was heavily criticized for possessing minimal legal power because it refers to an agreement between the people of the two republics. 2' While the term "people" constitutes a political category, it is not a legal classification.247 Therefore, many Slovak politicians, who wish to pursue a separate, less harsh economic policy, viewed the treaty as containing too many concessions. 24 However, even at this point, a great number of Slovaks recognized that the federation possesses important economic advantages.249 An independent Slovak republic, and its citizens, would have to bear the costs of establishing and maintaining a diplomatic corps, banks, and an army

File. At the beginning of 1992, the unemployment rate in Slovakia was 11.8 percent, almost three times higher than that in the Czech Lands. Czechoslovak Economy Set to Shrink This Year, The Reuter Library Report, Feb. 1, 1992, available in LEXIS, Nexis Library, LBYRPT File. 242. Today's Press Survey, CTK National News Wire, Dec. 16, 1991, available in LEXIS, Nexis Library, CTK File. 243. CSFR President in Slovakia, His Spokesman Gives News Conference, CTK National News Wire, Jan. 17, 1992, available in LEXIS, Nexis Library, CTK File. 244. Today's PressSurvey, CTK National News Wire, Feb. 10, 1992, available in LEXIS, Nexis Library, CTK File [hereinafter Press Survey]. 245. Slovak PoliticalParties on Draft Czech-SlovakAgreement, CTK National News Wire, Feb. 14, 1992, available in LEXIS, Nexis Library, CTK File. 246. Slovak Premier Regrets That Czech-Slovak Agreement Was Voted Out by CDM, BBC; SWB, Feb. 17, 1992, available in LEXIS, Nexis Library, CTK File [hereinafter Premier Regrets]. The preamble of the draft agreement states that, "[wie, the people of the Czech Republic, and we, the people of the Slovak Republic .... " Press Survey, supra note 244. 247. PremierRegrets, supra note 246. 248. Charles T. Powers, Slovak Issue May Imperil Prague'sEconomic Reforms, Havel's Future; Czechoslovakia: The Controversy Could Drag on Past the June Elections, with Slovakian Nationalists Pressingfor a Looser Confederation with the Czechs, L.A. TIMES, Feb. 23, 1992, at AS. The deputy chairman of the Federal Assembly stated that the Slovak nationalist politicians were merely using their power to adjust the distorted economic situation. Id. 249. Mary Hockaday, Forgotten Slovaks Claim a Voice, INDEPENDENT, Nov. 9, 1991, at 12. 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION and police, which are estimated to reach approximately $90 million.25 ° In addition, it would face the loss of its internal markets as well as economic isolation imposed by other countries. 25 Moreover, a symbiotic relationship exists between the Czech and Slovak republics.252 Hundreds of thousands of Slovaks live in the Czech lands and tens of thousands of Czechs live in Slovakia.253 Laborers move from one republic to another, and many mixed marriages are also in existence.' 4 This was reflected in the public opinion polls, which, just several months before the June 1992 elections, showed that the division of Czechoslovakia into two separate states was only supported by nineteen percent of the Slovak people.255 Despite these considerations, during the period immediately preceding the elections, the situation became grave. Talks between representatives of the Czech and Slovak governments were suspended and the Federal Assembly rejected three sections of the new constitution.2 56 Thus, when the elections took place, neither a treaty between the two republics nor new constitutions had been adopted.257 Further, the parties that won pluralities in each republic as a result of the elections possess ideologies so divergent as to render reaching an agreement a remote possibility. In the Czech lands, the Civic Democratic Party, headed by former federal finance minister Vaclav Klaus, an adherent of rigid free market economic policies, was the victor." Conversely, in Slovakia, former premier Vladimir Meciar's Movement for a Democratic Slovakia captured the largest block of votes. 59 Meciar, a former Communist, is strongly opposed to firther radical economic

250. Today's Press Survey, CTK National News Wire, Oct. 15, 1991, available in LEXIS, Nexis Library, CTK File; VPN Chairman Favors Referendum on Czechoslovakia's Future, CTK National News Wire, Sept. 14, 1991, available in LEXIS, Nexis Library, CTK File. 251. Carl Gewirtz, OECD Applauds Czechoslovakiafor Fast Move to Market Economy, INT'L HERALD TRIB., Jan. 8, 1992, availablein LEXIS, Nexis Library, IHT File; Slovak Premier on Gabcikovo Project andBudget Talks, BBC; SWB, Dec. 9, 1991, available in LEXIS, Nexis Library, BBCSWB File. 252. See Slovak Premier, supra note 182, at 19. 253. Id. 254. Id. 255. Federation Still Most Favoredin Slovakia-Poll, CTK National News Wire, Feb. 27, 1992, available in LEXIS, Nexis Library, CTK File. 256. President Expresses Concern About Post-Election Period and Lack of Constitution, BBC; SWB, Mar. 18, 1992, available in LEXIS, Nexis Library, BBCSWB File. 257. Id.; Slovak Premier on Problems of Overcoming Past and GuaranteeingDemocracy, BBC; SWB, Mar. 9, 1992, available in LEXIS, Nexis Library, BBCSWB File. 258. Schmidt, supra note 7. 259. Id. N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 reforms, fearing their effect on an already economically weakened Slovakia. 2" He is also determined to assert Slovakia's sovereignty. 261 Therefore, in the negotiations that took place soon after the elections, the leaders of the two parties were unable to reach an accommodation. 262 Meciar favored a loose union of two sovereign states in which Slovakia would have its own central bank as well as the right to borrow in order to finance state subsidies to industry and the increase of social benefits.263 Klaus, on the other hand, demanded a federation with a strong central government or, in the alternative, a complete split into two independent 2 states. 1 Resultantly, the two politicians agreed to pave the way for the division of Czechoslovakia into two separate nations.265 Several days later, President Havel, in a speech before the Federal Assembly, implored Czechs and Slovaks to remain one nation, but conceded that this prospect was now unlikely.266 The president emphasized that he still believed in the concept of a federal state and would not preside over the disintegration of Czechoslovakia.267 Consequently, in early July, his attempt to achieve re-election was thwarted by the Federal Assembly.268 In the first round of balloting, deputies belonging to the Movement for a Democratic Slovakia cast the decisive votes against Havel.269 Still, it was the Czechs who ultimately 27 blocked his re-election. ' Deputies from the Civic Democratic Party demanded a second vote immediately, despite the rules that provided for

260. Id. 261. Paul Wilson, The End of the , N.Y. REv. BOOKS, Aug. 13, 1992, at 57. 262. Split, supra note 4. 263. Velvet Divorce?, ECONOMIST, June 13, 1992, at 53. 264. Split, supra note 4. 265. Id. The split is scheduled to occur by January 1, 1993. Blue Velvet, ECONOMIST, Oct. 10, 1992, at 65. Slovakia has subsequently declared its sovereignty. Erazim Kohak, Tattered Velvet: A Country Falls Apart, 39 DISSENT 441, 444 (1992). The Slovak government has also renationalized the country's largest printing press. Chandler Rosenberger, Start Czeching, E. EUR. REP., Sept.-Oct. 1992, at 10. Further, on September 1, 1992, the Slovak National Council passed a constitution for an independent Slovak republic. Slovakia's New Constitution, E. EuR. REP., Sept.-Oct. 1992, at 9. This document gives a great deal of power to the government. Id. 266. Stephen Engelberg, Havel Calls for Preservation of United Czechoslovakia, N.Y. TIMES, June 26, 1992, at A2. 267. Id. Wilson, supra note 261, at 64. 268. Stephen Engelberg, Slovaks Here, Czechs There, N.Y. TIMEs, July 5, 1992, §1, at 7. 269. Id. 270. Id. 19921 CZECHOSLOVAKIA 'S NEW CONSTITUTION a delay of two weeks. 271 This maneuver removed the possibility that a compromise could be reached concerning Havel's candidacy.272 It also revealed the haste of the Czechs to quickly dismantle the nation.273 Havel failed to win re-election in the second round and, several weeks later, resigned. 274 Although he could have remained in office in the capacity of a caretaker, by resigning, he demonstrated his determination not to preside over the dissolution of his country. 2 Upon leaving the presidency, he drew attention to the actions of those leaders who had allowed the Nazis to partition the country in 1938 and the communists to "I prefer seize power in 1948.276 In contrast, President2 Havel stated that to resign before I sign something bad." 71

IV. CONCLUSION

The inability of modern, democratic Czechoslovakia to develop a viable constitutional system can partly be attributed to the differing national attitudes and economic circumstances of Czechs and Slovaks.27 8 The Czechs refused to take into consideration the deleterious effects that the immediate implementation of strict free market policies would have upon Slovakia.279 In turn, the Slovaks were unable to temper their long- repressed desire for national recognition.28° These were the main factors that set the country on the path toward dissolution.281 Nevertheless, Czechoslovakia's breakup can also be ascribed to the emerging trend in Europe. The members of the European Community are beginning to grow hesitant to surrender part of their national and economic sovereignty to a united federal Europe.282 The Soviet Union has been

271. Id. 272. Id. 273. Id. 274. Id; Stephen Engelberg, Vaclav Havel. Still Puckish, Still a Politician, No Longer President, N.Y. TIMES, July 21, 1992, at A8. 275. Id. 276. ld. 277. Id. 278. Kohak, supra note 265, at 442-44. 279. Id. 280. d. 281. ld. 282. O'Brien, supra note 15. 124 N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 13 supplanted by fourteen independent republics.283 In addition, regions within those republics are demanding independence.2 ' Most notably, the republics of Yugoslavia have been unable to find a formula by which they can peacefully coexist.28 5 Thus, amidst this atmosphere, Czechoslovakia's attempt to develop a constitutional system that preserved the unity of the country and provided sufficient latitude for Slovak national growth was fated to become a victim of an era characterized by uncertainty and fragmentation.

Roberta Barbieri

283. Ken Gluck, The New Russian Imperialists, 255 NATION 243 (1992). 284. Id. 285. Attali, supra note 15.